Defining and Maintaining Condominium Common Elements in Florida

Any classification of the condominium begins with the declaration of condominium, which sets forth the boundaries of an individual’s unit. In addition, an owner owns an undivided share of the common elements, i.e., “portions of the condominium property not included in the units.” Fla. Stat. § 718.103(8).

According to section. 718.108, Florida Statutes, “Common elements” includes within its meaning the following:

(a) The condominium property which is not included within the units.

(b) Easements through units for conduits, ducts, plumbing, wiring, and other facilities for the furnishing of utility services to units and the common elements.

(c) An easement of support in every portion of a unit which contributes to the support of a building.

(d) The property and installations required for the furnishing of utilities and other services to more than one unit or to the common elements.

(e) The declaration may designate other parts of the condominium property as common elements.

Common elements are those parts of a condo complex that belong to all owners. With a few exceptions, they constitute everything except the units in which people live. Corridors, garbage rooms, lobbies, locker areas, garages, technical rooms, the roof, grounds, walkways are all common elements. Other common elements include heating and air conditioning systems, hot water system, pipes, electrical systems, all light fixtures in common elements, and the security system. Common elements generally are the responsibility of the condo corporation in terms of maintenance, repairs, and replacement.

Items purchased, installed, removable and usable only by condominium unit owners are not common elements. Costa Del Sol Ass’n, Inc. v. State, Dept. of Business and Prof’l Regulation, Div. of Florida Land Sales, Condominiums, and Mobile Homes, 987 So. 2d 734 (Fla. 3d DCA 2008) (whirlpool tubs, trellises and elaborate screen enclosures are not common elements of the association which must be insured). As section 718.108(2), Florida Statutes, provides, it is important to review and analyze the precise definition for what a common element is as set forth in the declaration of condominium in order to understand what rights and responsibilities are associated to what. Specifically, the property legally described in the declaration must be one of two kinds- it must be a “unit,” specifically described with a portion of common element ownership assigned to it, or it will be common elements and jointly owned by all of the unit owners.

Often the declaration of condominium defines limited common elements that are reserved for the exclusive use of a certain condominium unit or units. Fla. Stat. § 718.103(19). “Limited common elements” means those common elements which are reserved for the use of a certain unit or units to the exclusion of all other units, as specified in the declaration. Fla. Stat. § 718.103. Examples of this include balconies, patios, storage lockers and assigned parking spaces. See Fla. Stat. § 718.103(19); Brown v. Rice, 716 So.2d 807 (Fla. 5th DCA 1998). Except for these limited common elements, all other portions of common elements are for use by all the unit owners. A unit owner is entitled to the exclusive possession of his or her unit, subject to the provisions of Fla. Stat. §718.111(5) and he or she is entitled to use the common elements in accordance with the purposes for which they are intended, but no use may hinder or encroach upon the lawful rights of other unit owners. In sum, whether the property is categorized as a unit, common element or limited common element will determine what ownership interests, usage rights and maintenance responsibilities are associated with that property.

As a general proposition, the association is charged with managing and maintaining the common elements. Fla. Stat. § 718.111; Fla. Stat. § 718.113. The declaration of condominium, however, may require a unit owner entitled to the exclusive use of certain limited common elements to maintain them. Fla. Stat. § 718.113(1). An important distinction to note is that maintenance responsibilities for various parts of the condominium property are distinct from legal ownership of that property. See, e.g., Vinik v. Taylor, 270 So.2d 413 (Fla. 4th DCA 1972). Restated, just because a unit owner is required to maintain certain limited common elements, he/she is not going to own them.

Instead of placing the obligation to maintain limited common elements on the unit owners, the declaration may direct the association to maintain the limited common elements either as a common expense or with the cost shared by those unit owners who are entitled to the exclusive use of the limited common elements. If the cost is shared by the exclusive use unit owners, the declaration must detail how and whom costs will be apportioned to. Furthermore, the association is authorized to collect payment of these costs through assessment lien provisions set forth in the Condominium Act. See Fla. Stat. § 718.113(1), 718.116.

While the association is responsible for maintaining the common elements, the association’s control over maintenance responsibilities is limited to the extent that there can be “no material alteration or substantial additions to the common elements or to real property which is association property, except in a manner provided in the declaration.” Fla. Stat. § 718.113(2)(a). Consequently, even though every unit owner owns an undivided share in the common elements, an individual unit owner is prevented from doing as he or she pleases in the common elements or other portions of the condominium that the unit owner may believe are his or hers. Fla. Stat. § 718.113(3). For example, parking spaces, balconies, patios, front and back yards typically are common or limited common elements and subject to regulation. The classic example of a limited common element is a balcony. Something outside of any unit logically is probably not considered to be a unit. A balcony is always outside an individual unit and therefore it’s a common element, but only the unit owner has access do it- ergo, a limited common element.  Given these restrictions, it follows that entrance door decorations or door paint color, screen enclosures, or plants placed on the catwalks in front of a unit rightfully can be prohibited or required. Schmeck v. Sea Oats Condo. Ass’n, Inc., 441 So.2d 1092 (Fla. 5th DCA 1983). However, the Condominium Act expressly permits unit owners to display a United States flag. Fla. Stat. § 718.113(4). Similarly, unit owners have the right to install approved hurricane shutters on any portion of their unit, or they may, by majority vote, allow the board to install the shutters. Fla. Stat. § 718.113(5).

Regarding material alterations to the common elements of condominiums in Florida, section 718.113(2), Florida Statutes, provides that unless a different procedure is provided for in the Declaration of Condominium, then a vote of 75 percent of all owners is required in order to alter the use, function or appearance of the common elements.

However, certain types of changes which substantially alter the rights of owners to use the common elements have been found to constitute not just an alteration to the common elements, but an amendment to the appurtenances of a unit. Section 718.106(2) provides that the right to use the common elements is one of the “appurtenances” which go with each unit, and these rights cannot be taken away without a 100 percent vote of all owners and lien holders under Section 718.110(4) of the Florida Statutes.

Sources: 11 Peter M. Dunbar, The Condominium Concept (2008-09); Florida Condominium and Community Association Law (2007-08); Understanding Condominium Association Powers to Govern Well, the Condominium Association Must Be Endowed with the Proper Powers., Prac. Real Est. Law., July 2003, at 47.